Of Veterinarians, Lawyers and Social Media

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Recent news reports told of a "virtual veterinarian" in Texas who moved his practice online and communicated to distressed pet owners by email and telephone.

He generally charged a flat fee and recommended treatment options. The Texas State Board of Veterinary Medical Examiners suspended his license for violating the state law that prevents veterinarians from setting up a medical relationship solely by telephone or electronic means.

The state and the American Veterinary Medicine Association claimed that it is protecting the public interest. The vet claimed that the regulation is intended to protect the brick-and-mortar veterinarian from competition by new technologies and methodologies.

The kind of controversy facing the Lone Star state is far from resolved in the broader legal profession. In a previous column, I discussed a New Jersey Supreme Court ruling that held that state attorneys are no longer obligated to maintain traditional brick-and-mortar offices as a condition for practicing law, as long as they're available for "prompt and reliable communication" with clients.

But there are other concerns in the veterinarian's situation that transcend the brick-and-mortar issue, most especially in the area of client contact. Note that the veterinarian established relationships and provided advice solely as a virtual practitioner without ever meeting clients — whether two- or four-legged. What are the ethical implications for a lawyer in doing the same thing, especially with the increased temptation to use social media as an all-purpose contact and communication tool?

There are many concerns about whether social media activity is freely available information or should be controlled by the bar, because social networking messages are available to the entire world, not just existing clients.

The American Bar Association's Commission on Ethics 20/20 Working Group on the Implications of New Technologies raised these concerns in detail in a 2010 working paper and recommended in 2011 that social networking should not be used for "real time electronic contact" to solicit or advise clients and should be viewed as general communication to educate potential clients.

On the surface, it would seem that the momentum for social media use in the legal profession cannot be held back. However, Facebook and Twitter are available to the world at large. Prudence dictates that the information provided should be through the lens of general discussion and opinion, not as an offer of legal advice. That is, if a social media post has a bearing on a lawyer's areas of emphasis and thereby has the possibility of generating new business, it is likely regulated by all the rules of professional conduct. Even if such a communication is personal, it will have professional impact on clients and prospective clients.

Prospective clients can use social networking resources to check out the lawyers' credentials, experience and testimonials, get feedback from current clients, and even get a personal feel from what lawyers reveal on these sites about their family, hobbies and opinions. That is the path to establishing a practice relationship. If it presents gray areas of any kind, seeking an ethics opinion from bar counsel may be the better part of valor.

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